1 Salkeld (Eng.), 226. - 1791.
In ejectment a special verdict was found, viz., Knowling had issue two sons, John and Richard, and devised lands to John for 50 years, if he should so long live, and as for my inheritance after the said term, I devise the same to the heirs male of the body of John, and for default of such issue, then to Richard. The court resolved, 1st. That John had not an estate tail by implication upon the words without issue, because the devisor had given him an estate for years by express words, and the court cannot make such a construction it is ready to vest. There seems also to be one specific rule limiting contingent remainders, viz: "An estate cannot be given to an unborn person for life followed by an estate to any child of such unborn person." The latter will be a void limitation. It is thought by some that the "rule against perpetuities'' applies to common-law contingent remainders, but this is more than doubtful. Sec Gray (who favors the doctrine) Rule against Perpetuities, §§ 284, 298. In those States where remainders are cut loose from their dependence on the pre-cedent estate there is no doubt that the rule against perpetuities must be extended to them; they would otherwise be under no limitation against remoteness. - Ed.
against express words, when thereby they would also drown the estate for years, and make an estate of inheritance. 2d. The court held this devise to the heirs male of the body of John, to be void in its creation. For, for want of an estate of freehold to support it, it was void as a remainder; and they seemed not to think it an executory devise, because it was limited as a remainder, and because it is limited per verba de praesenti. If one devise his estate to the heir of J. S., and J. S. is living, the devise shall not be construed an executory devise, and such a devise is therefore void; but if it were to the heir of J. S., after the death of J. S., that is good, as an executory devise. So note the diversity inter verba de praesenti and verba de futuro. 3d. The court held the limitation to the heirs male of John was become void by the event, whatever it was in its creation, because John is now dead without issue. 4th. The court held, that if the remainder to the heirs male of John was void in point of limitation, then the next remainder limited to Richard took effect presently. 4 Mod. 255, s. c.
The Chancellor in
5 Paige's Chancery (N. Y.), 318. - 1835.
The 20th section of the title of the Revised Statutes, so often referred to, prohibits the creation of a contingent remainder upon a term of years, unless the nature of the contingency upon which it is limited is such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of the remainder, or at the termination of such lives. 1 R. S. 724.1 But this provision of the Revised Statutes cannot be construed to mean that no contingent remainder shall be limited on a term of years, unless it is so limited as to render it certain that the remainder must, in any event, become vested in interest. Upon such a construction of the 20th section of the statute, the next section is not only useless but absurd. The 21st section provides that no estate for life shall be limited as a remainder on a term of years, except to a person in being at the creation of such estate. 1 R. S. 724. A remainder to a person not in being must always be contingent until his birth; and until that event it cannot be known that it will ever vest in interest, in whatever form it may be limited. Even if it is to the general heirs of a person in being at the creation of the remainder, it may never become vested, as such person may die without an heir. The fair construction of these two sections of the statute taken together, therefore, is, that a contingent remainder upon a term of years must be so limited that it will necessarily vest in interest within the period required by the 20th section, if it ever becomes thus vested. And that a contingent remainder for life, to a person not in being, shall not be limited on a term of years, although it is so limited that it will become vested within that period, if ever. Neither does this 20th section of the statute render it absolutely necessary that the term of years, on which a contingent remainder is limited, should be made determinable upon lives. But such remainder may be limited upon a term in gross, if the remainder itself is so limited that it must necessarily become vested in interest, if ever, during, or at the expiration of, not more than two specified or ascertained lives, in being at the creation of such remainder. Thus, upon a devise to A. for fifty years, as an absolute term, remainder to B. for life, if he should marry C, and remainder in fee to the children of such marriage. The remainder to B., upon condition of his marriage with C, is contingent, but must necessarily vest in interest, if ever, during the period of his own life, although it will never vest in possession if he dies within the term. And the ultimate remainder in fee to the children of the marriage must also vest in interest, if ever, within the period of one life in being at the death of the testator. The first child of the marriage would, upon its birth, take a vested interest in the ultimate remainder in fee, subject to open and let in after-born children. And it would be no objection to the validity of the contingent remainders to the children, in the cases supposed, that a child might not be born in the lifetime of the father, although begotten before his death, and that it might be brought into existence by the caesarean operation, even after the death of the mother. For, upon a limitation of a future estate to children, or heirs, or issue, a posthumous child, if born alive, is considered as in existence and capable of taking a vested interest for its own benefit, in the same manner as if born and living at the death of its parents. 1 R. S. 725, sec. 30.1 Marsellis v. Thalheimer, 2 Paige's Rep. 35.